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Allahabad High Court · body

2022 DIGILAW 721 (ALL)

Rajesh Devi v. Nathnati Saha

2022-05-09

SALIL KUMAR RAI

body2022
JUDGMENT : 1. This is a claimants' appeal under Section 173 of the Motor Vehicles Act, 1988 for enhancement of compensation. The appeal has been filed against the judgment and award dated 16.8.2021 passed by the Motor Accident Claims Tribunal, District Ghaziabad in Motor Accident Claim Petition No.123 of 2020 (Rajesh Devi and others versus Nathnati Saha and others). 2. By order dated 22.2.2022, service of notice of the appeal was declared to be sufficient on the opposite parties and as no one had appeared on their behalf therefore, the appeal was heard ex parte against the opposite parties. 3. The claimants/appellants instituted Motor Accident Claim Petition No.123 of 2020 under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as Act, 1988) claiming compensation of Rs.21,40,950/- for the death of their son Pappu due to injuries caused in an accident that took place on 4.3.2020 allegedly due to rash and negligent driving of Motor Cycle bearing Registration No. DL 14 SH8693 (hereinafter referred to as the ‘offending vehicle’). It was alleged in the claim petition that the deceased was a skilled carpenter earning Rs.15000/-per month. 4. Despite notices having been served on them the defendants/opposite parties did not contest the claim petition and did not file their written statement, therefore proceedings before the Tribunal were held ex parte against the defendants/opposite parties. 5. The claimant appellant no.1 is the mother of the deceased and the claimant appellant no. 2 is the father of the deceased. The defendant-opposite party no.1 is the owner of the offending vehicle, the defendant opposite party no. 2 is the driver of the offending vehicle and the defendant opposite party no.3 is the Insurance Company with which the offending vehicle was allegedly insured. 6. The Tribunal framed four issues. Issue no.1 was as to whether Pappu died in the accident that took place on 4.3.2020 and whether the accident occurred due to rash and negligent driving of the offending vehicle. Issue no.2 was as to whether at the time of accident, the driver of the offending vehicle had a valid driving licence. Issue No.3 was as to whether at the time of accident, the offending vehicle was insured with opposite party no.3 and Issue no.4 was regarding compensation payable to the claimants and the defendant liable to pay compensation. 7. Issue no.2 was as to whether at the time of accident, the driver of the offending vehicle had a valid driving licence. Issue No.3 was as to whether at the time of accident, the offending vehicle was insured with opposite party no.3 and Issue no.4 was regarding compensation payable to the claimants and the defendant liable to pay compensation. 7. The Tribunal decided Issue no.1 in favour of the claimants and held that Pappu died due to injuries caused in the accident which took place due to rash and negligent driving of the offending vehicle. Issue nos. 2 & 3 were decided against the owner of the vehicle. On Issue no.4, which related to compensation payable to the claimants, the Tribunal computed the pecuniary damages payable to the claimants taking the age of the deceased as 23 years and assuming the income of the deceased to be Rs.5000/-per month. The Tribunal added 40% future prospects in the income of the deceased on the ground that the deceased had no fixed salary. The Tribunal deducted 50% from the income of the deceased and after applying a multiplier of 18 held the pecuniary loss to the claimants to be Rs.7,56,000/-. The Tribunal awarded Rs.10,000/-for loss of love and affection and Rs.5000/-for funeral expenses in accordance with Rule 220-A(2) of the U.P Motor Vehicles Rules 1998 (hereinafterreferredtoasRules,1998)and 7% simple interest per annum on the awarded amount. Hence, the present appeal for enhancement of compensation. 8. It was argued by the counsel for the claimants-appellants that the Tribunal has erred in awarding compensation treating the income of the deceased as Rs.5000/- per month even though the claimant no. 2 in his testimony as P.W-1 had proved that the deceased was a skilled carpenter and earned Rs.15,000/-per month. It was further argued that in accordance with Rule 220-A of the Rules 1998, 50% as future prospects had to be added to the income of the deceased. It was argued that in accordance with Rule 220-A of the Rules 1998 the claimants-appellants were entitled to compensation for both loss of filial consortium as well as for loss of love and affection. It was argued that in accordance with the judgment of the Supreme Court in National Insurance Company Ltd versus Pranay Sethi & others (2017) 16 SCC 680 , the claimants were entitled to Rs.15,000/-as Funeral Expenses and Rs.15,000/-for loss of Estate. It was argued that in accordance with the judgment of the Supreme Court in National Insurance Company Ltd versus Pranay Sethi & others (2017) 16 SCC 680 , the claimants were entitled to Rs.15,000/-as Funeral Expenses and Rs.15,000/-for loss of Estate. It was argued that considering the aforesaid, the compensation awarded by the Tribunal is very low and is to be enhanced. 9. I have considered the submissions of the counsel for the claimants-appellants and also perused the records. 10. As no cross appeal or cross objection has been filed by the opposite parties, therefore, the Court is not examining the findings of the Tribunal on Issue nos. 1 to 3 and the consideration in present appeal is restricted to the plea of the appellants for enhancement of compensation. 11. In its impugned award dated 16.8.2021, the Tribunal has held that the deceased was 23 years old. The age of the deceased is proved by the Postmortem Report. In the present appeal also, the age of the deceased is held to be 23 years. 12. No documentary evidence was filed by the claimants to prove either the income of the deceased or the plea of the claimants that the deceased was a skilled carpenter. There is no evidence on record to show that the deceased possessed any professional skill. In view of the aforesaid, the pecuniary loss caused to the claimants for the death of their son has to be determined on the basis of notional income of the deceased which in turn is to be determined on the notional income of an unskilled labour. In New India Assurance Co.Ltd. Versus Smt..Resha Devi and others (2017) 3 ADJ 685 , a Division Bench of this Court held that the notional income of an unskilled labour cannot be taken to be less than Rs.200/-per day. The observations of this Court in Paragraph Nos. 9 and 11 are reproduced below :- "9. The next submission of the learned counsel for the appellant that income of Rs.100/- per day presumed by the tribunal is extremely on higher side is without any force and not liable to be accepted. Tribunal in recording the said claim has relied upon the judgment of the Hon'ble Apex Court in the case of Laxmi Devi and another Vs. The next submission of the learned counsel for the appellant that income of Rs.100/- per day presumed by the tribunal is extremely on higher side is without any force and not liable to be accepted. Tribunal in recording the said claim has relied upon the judgment of the Hon'ble Apex Court in the case of Laxmi Devi and another Vs. Mohammad Tabbar and others, 2008 (2) TAC 394 SC wherein notional income to unskilled labour was presumed to be Rs.100/- per day. Much water has flown since 2008. It is a matter of common knowledge that with the rise in price index, there has been considerable increase in the wages of salaried as well as self employed person. The average income of even a daily labour in 2014 when the accident took place cannot be presumed to be less than Rs.200/- per day. In our considered opinion, the tribunal committed a manifest error of law in presuming the notional income of the deceased to be Rs.100/- per day. 11. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations. Obviously award of damages would depend upon the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor. In such view of the matter, presumption of Rs.100/- per day as notional income even for a unskilled labour in the year 2014 appears to us to be frugal and by no stretch of imagination to be just even the minimum wages fixed by the State Government is much higher than that looking to the rise in cost index. We are of the considered upon that notional income of an unskilled labour could not be less than Rs.200/- per day." (emphasis added) 13. In the present case, the accident occurred in 2020. Following the judgment of the Division Bench of this Court, it would be just to treat the notional income of the deceased as Rs. 200/-per day, i.e., Rs.6,000/- per month. 14. In the present case, the accident occurred in 2020. Following the judgment of the Division Bench of this Court, it would be just to treat the notional income of the deceased as Rs. 200/-per day, i.e., Rs.6,000/- per month. 14. It was argued for the appellants/claimants that, in accordance with Rule 220-A of the Rules, 1998, 50% future prospects had to be added in the income of the deceased and the claimants were also to be awarded compensation for both, loss of consortium and loss of love and affection. 15. There is some difference between the parameters for award of compensation as prescribed by Rule 220-A(3) and the principles for award of compensation as laid down by the Supreme Court in its different judgments. Two differences which are relevant for the present case are considered below. 16. Rule 220-A (3) of the Rules, 1998 provides that future prospects of a deceased shall be added in the actual salary or minimum wages of the deceased as under :- (i) Below 40 years of age 50% of the salary (ii) Between 40-50 years of age 30% of the salary (iii) More than 50 years of age 20% of the salary (iv) When wages not sufficiently proved. inflation and price index. 50% towards 17. In Pranay Sethi (supra), the Supreme Court endorsed addition of 50% as future prospects in the established income of the deceased if he was below 40 years and was in a permanent job, 30% if he was between 40 and 50 years and 15% if the deceased was between 50 to 60 years. It was further laid down in Pranay Sethi (supra) that if the deceased was self employed or on a fixed salary, 40% should be added as future prospects in his established income if he was less that 40 years, 25% should be added if he was between the age of 40 and 50 years and 10% should be added if he was between 50 and 60 years. In Pranay Sethi (supra), it was laid down that there should be no addition of future prospects in the income of the deceased if he was more than 60 years. 58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. In Pranay Sethi (supra), it was laid down that there should be no addition of future prospects in the income of the deceased if he was more than 60 years. 58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts. 59. In view of the aforesaid analysis, we proceed to record our conclusions: 59.1. The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. 59.2. As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. 59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component." (Emphasis added) 18. The difference between the parameters prescribed by Rule 220-A(3) for addition of future prospects in the income of the deceased and the norms, for the said purpose laid down in Pranay Sethi (supra) are evident. The difference is not only regarding the percentage of the income of the deceased which is to be added as future prospects while determining compensation but also regarding the age of the deceased till which future prospects are to be added to his income. Pranay Sethi (supra) recommends that there should be no addition of future prospects if the deceased was above 60 years while Rule 220-A(3) provides for addition of 20% as future prospects in the income of the deceased if he was above 50 years and prescribes no maximum age after which future prospects are not to be added in the income of the deceased. Further, for the purposes of adding future prospects, Rule 220-A(3) does not differentiate between a deceased who had a permanent job and a deceased who was on a fixed salary or a deceased whose income is determined on minimum wages while in Pranay Sethi (supra) different norms have been prescribed for adding future prospects in cases of deceased who had a permanent job and a deceased who was on a fixed salary. No standard has been laid down in Pranay Sethi (supra) for adding future prospects in case the income of the deceased is determined on the basis of minimum wages payable to skilled, semi-skilled or unskilled worker at the relevant time. 19. No standard has been laid down in Pranay Sethi (supra) for adding future prospects in case the income of the deceased is determined on the basis of minimum wages payable to skilled, semi-skilled or unskilled worker at the relevant time. 19. The other difference between the principles laid down by the Supreme Court in its different judgments and the norms prescribed by Rule 220-A is regarding the different category of non-pecuniary damages payable as compensation. 20. The Supreme Court in Pranay Sethi (supra) referred to only three conventional heads, namely, loss of estate, loss of consortium and funeral expenses which are to be awarded to the claimants under Section 166 of the Act, 1988. In Pranay Sethi (supra), it was laid down that the compensation under the aforesaid conventional heads should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively. In Magma General Insurance Company Ltd. vs. Nanu Ram 2018 SCC OnLine SC 1546, the Supreme Court awarded compensations for both loss of love and affection and for loss of consortium. The compensation for loss of love and affection was determined as Rs.50,000/- and the compensation for loss of consortium, in accordance with Pranay Sethi (supra), was determined as Rs.40,000/-. The compensation under the aforesaid heads were paid separately to each of the claimants by the Supreme Court. However, subsequently, the Supreme Court in United India Insurance Company Ltd. vs. Satinder Kaur @ Satwinder Kaur & Ors., AIR (2020) SC 3076 held that loss of love and affection is included in loss of consortium and, therefore, there was no justification to award compensation towards loss of love and affection as a separate category. The aforesaid judgment was followed by the Supreme Court in The New India Assurance Company Ltd. vs. Smt. Somwati & Ors., (2020) 9 SCC 644 . 21. However, Rule 220-A(4) of the Rules, 1998 identifies 'loss of love and affection' and 'loss of consortium' as separate categories of non pecuniary damages. Rule 220-A(4) of the Rules, 1998 is reproduced below :- (4) The non-pecuniary damages shall also be payable in the compensation as follow :- (i) Compensation for loss of estate Rs. 5,000 to Rs. 10,000 (ii) Compensation for loss of consortium Rs. 5,000 to Rs. 10,000 (iii) Compensation for loss of love and affection Rs. 5,000 to Rs. 15,000 (iv) Funeral expenses costs of transportation of body Rs. 5,000 to Rs. 10,000 (ii) Compensation for loss of consortium Rs. 5,000 to Rs. 10,000 (iii) Compensation for loss of love and affection Rs. 5,000 to Rs. 15,000 (iv) Funeral expenses costs of transportation of body Rs. 5,000 or actual expenses whichever is less (v) Medical expenses actual expenses proved to the satisfaction of the Claims Tribunal. 22. A reading of the judgments of the Supreme Court in SatinderKaur (supra) and Smt. Somwati (supra) do not indicate that Rules, 1998 were brought to the notice of the Supreme Court in the aforesaid cases. Subsequently, the Supreme Court in New India Assurance Company Ltd. vs. Urmila Shukla & Ors. 2021 SCC OnLine SC 822 held that if an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi (supra) cannot be taken to have limited the operation of such statutory provision especially when the validity of the statute was not put under challenge. It was observed by the Supreme Court that if a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid. The issue before the Supreme Court in Urmila Shukla (supra) was whether in accordance with Rule 220-A(3)(iii), 20% was to be added as future prospects in the income of the deceased if the deceased was above 50 years or whether the addition is to be 15% as laid down in Pranay Sethi (supra). The Supreme Court, in Urmila Shukla (supra), applying the principle stated before affirmed the award of the Tribunal and the High Court which had added 20% as future prospects in the income of the deceased who was above 50 years. The observations of the Court from paragraphs 8 to 11 are reproduced below :- "8. It is submitted by Mr. Rao that the judgment in Pranay Sethi does not show that the attention of the Court was invited to the specific rules such as Rule 3(iii) which contemplates addition of 20% of the salary as against 15% which was stated as a measure in Pranay Sethi. In his submission, since the statutory instrument has been put in place which affords more advantageous treatment, the decision in Pranay Sethi ought not to be considered to limit the application of such statutory Rule. 9. In his submission, since the statutory instrument has been put in place which affords more advantageous treatment, the decision in Pranay Sethi ought not to be considered to limit the application of such statutory Rule. 9. It is to be noted that the validity of the Rules was not, in any way, questioned in the instant matter and thus the only question that we are called upon to consider is whether in its application, sub-Rule 3(iii) of Rule 220A of the Rules must be given restricted scope or it must be allowed to operate fully. 10. The discussion on the point in Pranay Sethi was from the standpoint of arriving at "just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988. 11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid." (Emphasis added) 23. There is no reason to restrict the principle enumerated in Urmilla Shukla (supra) only to the difference between Rule 220-A(3)(iii) and the norms laid down in Prannay Sethi (supra). The principle enumerated in Urmila Shukla (supra) is that if a statutory instrument affords greater or better benefits, said statutory instrument shall operate and the norms laid down by different judicial precedents shall not limit the operation of such statutory instrument. It is to be noted that the statutory instrument shall prevail over the norms laid down by juridical precedents only to the extent it gives greater or better benefit than the judicial precedents. If the norms laid down by judicial pronouncements give greater or better benefit than the formula devised by the statutory instrument, the judicial precedents shall prevail over the statutory instrument. If the norms laid down by judicial pronouncements give greater or better benefit than the formula devised by the statutory instrument, the judicial precedents shall prevail over the statutory instrument. In other words, just compensation under Section 168 of Act, 1988 is to be determined applying the norms prescribed in Rule 220-A and the principles laid down by the judicial precedents, whichever gives greater or better benefit to the claimants. 24. Rule 220-A(4) of Rules, 1998 identifies ‘loss of consortium’ and ‘loss of love and affection’ as different heads for award of non-pecuniary damages. In that respect Rule 220-A(4) gives better benefit than the principles laid down by the Supreme Court in Satinder Kaur (supra) which held that ‘loss of love and affection’ is included in ‘loss of consortium’. However, so far as the amount to be awarded under the conventional heads is concerned, the amounts prescribed in Pranay Sethi (supra) and Magma General (supra) give greater benefit than Rule 220-A. 25. Thus, the categories under which the non-pecuniary damages are to be awarded is to be decided in light of Rule 220-A(4) and the amount to be awarded under the aforesaid categories is to be the amount fixed by the Supreme Court in Pranay Sethi (supra) and Magma General (supra). Further, future prospects is to be added in the income of the deceased on the formula prescribed in Rule 220-A(3) of the Rues, 1998. 26. It is clarified that compensation on the aforesaid principle is to be determined in cases of accidents that took place after 26.9.2011 as Rule 220-A was inserted in Rules, 1998 with effect from 26.9.2011. 27. In the present case, the compensation is to be determined on notional income of the deceased which in turn, is to be determined on the minimum wages of an unskilled labour and thus in accordance with the Rules, 1998, 50% has to be added as future prospects in the notional income of the deceased while determining the multiplicand as deceased was 23 years old. 28. It is further held that the claimants were entitled to compensation for both ‘loss of consortium’ and for ‘loss of love and affection.’ 29. The deceased was unmarried, therefore, 50% is to be deducted for his personal and living expenses. 28. It is further held that the claimants were entitled to compensation for both ‘loss of consortium’ and for ‘loss of love and affection.’ 29. The deceased was unmarried, therefore, 50% is to be deducted for his personal and living expenses. The deceased was 23 years old, therefore, according to Sarla Verma and others versus Delhi Transport Corporation and others (2009) 6 SCC 121 , a multiplier of 18 is to be applied to determine the pecuniary damages. The claimants are also entitled to compensation for ‘loss of estate’ and ‘funeral expenses’ as determined in Pranay Sethi (supra). 30. On applying the aforesaid principles, it is apparent that the compensation awarded to the claimants by the Tribunal is too meager and is to be enhanced. The compensation payable to the claimants is re-determined as follows :- (1) Notional income of the deceased = Rs.200/-per day = Rs.6,000/- per month, i.e., Rs.72,000/-per annum. (2) 50% deductions for the personal and living expenses of the deceased = Rs.36,000/- (Rs.72,000/2). (3) The dependency of the claimants on the deceased = Rs.36,000/-. (Rs. 72,000/--Rs. 36,000/-) (4) After adding 50% as Future prospects = 36,000 x 50% = Rs.18,000/-. (5) Thus, multiplicand = Rs.36,000 + Rs.18,000 = Rs.54,000/-. (6) Applying the multiplier of 18, the pecuniary damages would be = Rs.54,000 x18 = Rs.9,72,000/-. (7) Compensation under the conventional heads - (i) Loss of estate = Rs.15,000/- (ii) Funeral expenses = Rs.15,000/- (iii) Loss of filial consortium to appellants/claimants Rs.40,000 x 2 = Rs.80,000 (Rs.40,000/-to each of the claimants) (iv) Loss of love and affection to appellants/claimants = Rs.50,000 x 2 = Rs. 1,00,000/-(Rs. 50,000/-to each claimant) 31. Thus, the total compensation payable to the claimants = Rs.11,62,000/-. (After adding item nos.6, 7(i), 7(ii), 7(iii) and 7(iv). 32. It is held that the claimants are entitled to a compensation of Rs.11,62,000/-. The claimants shall be entitled to interest at the rate of 7% per annum as awarded by the Tribunal. The appeal is allowed and the award of the Tribunal is modified to the aforesaid extent. 33. The balance amount/enhanced compensation shall be divided equally amongst the claimants/appellants. 34. The Tribunal has held the opposite party nos. 1 and 2, i.e., the owner and driver of the offending vehicle, jointly and severally liable to pay the compensation amount and the findings of the Tribunal on the aforesaid count are upheld. 33. The balance amount/enhanced compensation shall be divided equally amongst the claimants/appellants. 34. The Tribunal has held the opposite party nos. 1 and 2, i.e., the owner and driver of the offending vehicle, jointly and severally liable to pay the compensation amount and the findings of the Tribunal on the aforesaid count are upheld. The balance amount/excess amount as awarded in the present appeal shall be deposited by the opposite parties nos.1 and 2 in the Tribunal within three months from today. The amount so deposited by the opposite parties nos.1 and 2 under the present order of this Court shall be deposited by the Motor Accident Claims Tribunal, Ghaziabad in the highest interest bearing fixed deposit schemes, either of the post office or of any nationalized bank. The receipts of the fixed deposit shall be handed over to the appellants who shall be entitled to withdraw the maturity amount when the fixed deposits mature. The maturity amount shall be credited by the bank/post office in any savings account of the appellants. The concerned bank or post office shall not permit any loan or advance against the fixed deposits made in favour of the appellants. The Tribunal, while depositing the amount in any fixed deposit scheme, shall communicate the directions issued by this Court to the concerned bank/post office. On failure of the opposite parties nos. 1 and 2 to deposit the excess amount within the time fixed in the present order, the Tribunal shall take steps to recover the same under Section 174 of the Act, 1988. 35. With the aforesaid directions and observations, the appeal is allowed. Parties shall bear their own cost. 36. The office shall transmit the records of the case to the Tribunal, at the earliest.